Sim Ban Kiat v Teo Sing Keng and Another

• Jurisdiction: Singapore
• Judge: K S Rajah JC
• Judgment Date: 26 January 1993
• Neutral Citation: [1993] SGHC 16
• Date: 26 January 1993
• Subject Matter: Duty to mitigate,Personal injuries cases,Damages,Loss of earnings,Measure of damages,Plaintiff not overcompensated if amount not reduced by amount equivalent to tax,Award not taxable
• Docket Number: Suit No 253 of 1991
• Published date: 19 September 2003
• Defendant Counsel: NK Pillay (Harry Elias & Partners)
• Court: High Court (Singapore)
• Plaintiff Counsel: Charles Mendis (Charles N Mendis & Partners)

Cur Adv Vult

The dispute in this case was over:

(1) the multiplicand for pre-trial loss of earnings;

(2) the multiplicand for post-trial loss of earnings;

(3) whether there was mitigation; and

(4) the proper deductions.

The plaintiff was the rider of motorcycle FD 6391 P which was involved in a collision with motor bus SBS 4747 D. The first defendant was the driver of the bus, and was the servant and agent of the second defendant. The plaintiff`s claim is for damages.

The plaintiff left school some time in 1979 when he was 15 or 16 years old. He started work as an odd job labour, later he became a painter and a welder. After national service, he worked as a painter and became a welder again some time in 1989. At the time of the accident he was a sub-contractor cum welder.

Accident

On 13 January 1990 at about 11.30pm, the plaintiff was driving motorcycle No FD 6391 P along New Bridge Road towards the direction of Eu Tong Sen Street when motor bus No SBS 4747 D driven by the first defendant in the opposite direction made a right turn across the path of motorcycle causing the motorcycle to collide into the bus. Liability was agreed at 90% to the defendant and 10% to the plaintiff.

Injuries

The plaintiff suffered the following injuries:

(1) Cervical cord contusion with sensory level C5 tetraparesis and neurogenic bladder and bowel.

(2) Fracture of the right first rib.

(3) Open fracture of the right tibia and fibula - where an open reduction and fixation was done.

(4) Laceration of the liver - laparotomy drainage and suture was done.

(5) Stable closed head injury with cerebral oedema - treated conservatively.

Treatment

The plaintiff was treated at the Spinal Rehabilitation Department Tan Tock Seng Hospital on 6 March 1990 where he was taught walking exercises, feeding, dressing and management of activities of daily living. He was bladder and bowel trained and taught to empty and void four hourly with tapping and compression.

The plaintiff progressively improved. He learnt to be independent with minimal assistance in self-care. He is able to walk short distances with the help of two quad sticks but requires assistance in walking long distances and climbing stairs. He is permanently disabled, and is a tetraparetic with power in his limbs grade 4, proximal stronger than distal and the weakest being his hands. He is unable to grasp, write clearly or support himself. He has significant muscle spasms and requires medication. He is dependant upon his parents for assistance in walking, dressing and in all activities of daily living. His bladder and bowel dysfunction are permanent and will require medication to void and defaecate permanently. He was discharged from hospital on 11 August 1990 and is still on follow-up at the Spinal Clinic.

The medical evidence

Dr ES Tan, the physician and head of department of Rehabilitation Medicine, Tan Tock Seng Hospital, examined the plaintiff on 1 July 1992 and produced his report dated 2 July 1992 where he said: `The condition of the plaintiff had improved physically from his medical condition.` The plaintiff walks with the aid of two elbow crutches. The small muscles of his hands are still paralysed and wasted resulting in a functionless pair of hands which could not grip. He also has a drop foot in his right foot (due to paralysis of his dorsiflexors). The plaintiff can pass urine and defecate by straining. The plaintiff is now left with the following permanent residual disabilities:

(1) Neurogenic bladder and bowel.

(2) Paralysed, functionless hands.

(3) Drop foot affecting his right foot.

(4) Spastic lower limbs which impeded walking normally without the aid of bilateral elbow crutches.

(5) Dexterity with his bare hands were not possible for a pincer grip.

The plaintiff can do simple jobs like being a lift attendant or telephone operator but the leg mobility is spastic and weak. The plaintiff can walk with crutches but at a slow pace. Dr Tan was of the opinion that the plaintiff would not be able to sustain a long walk, for example 1 km and that he would have to stop at intervals of 300 to 400 yards.

Bladder and bowel

The nerve supply had been injured. It does not function in the normal way. The plaintiff cannot control a full bladder but has been trained. Dr Tan was cross-examined at length. He was of the opinion that his conclusion in his report about the permanent residual disabilities would hold good. The plaintiff could only walk a short distance. There would not be any significant improvement although the plaintiff has progressively improved earlier.

The plaintiff`s paralysis is from the waist downwards. Both his lower limbs are spastic. One ankle has no power at all. He walks with a calliper to prevent the right foot from dropping down. The wrist, lower limbs, bladder and bowel are affected. The fracture has healed.

The plaintiff has been trained to micturate at regular intervals. The plaintiff has had full recovery from his head injury and can work. Dr Tan however said that training has to be done in a proper centre which admits young handicapped persons. There would have to be an assessment before the plaintiff is admitted for training. Help would have to be given to find a job. The training would have to be considered over a period of time before the centre can determine whether improvement would be forthcoming. There is, of course, a cost to the training.

Employment

Dr Tan, however, said that when one considers employment, two matters had to be considered: (1) whether the person is employable; and (2) whether transport will pose problems.

Tan Kim Hong, the partner in United Eagle Enterprises, gave evidence for the plaintiff. He was the manager of Boon Tong Ship Repairs. Tan Kim Hong confirmed that the plaintiff was a welder and he confirmed that the plaintiff was a `self-employed Welding Sub-contractor`. His firm issued the letter of 11 February 1991. The average earnings would be $1350 per month. Welders were paid by the metre and the metre was the basis of payment and it could be one, two or three dollars per metre. The amount was not fixed. Tan said that the daily wages for a daily rated welder is between $30 to $50. Between 1988 and 1990, the demand for welders was average. The welders were paid different rates. Some higher and some lower. Welders received their training during apprenticeship and qualified welders could earn about $100 per day. Experience, not qualifications mattered.

The income of the plaintiff was the subject of detailed cross-examination. Reference was made to the plaintiff`s failure to produce his CPF statement, his pass book, failure to pay tax, and the deductions that should be made.

The dispute

Mr Pillai for the defendant raised the following matters in connection with the loss of earnings:

(1) Failure on the part of the plaintiff to mitigate.

(2) Insufficient evidence to support the claim for pre-trial loss of $1,200.

(3) Although the plaintiff had not paid tax, a deduction for tax should be made for both pre-trial and future loss of earnings.

(4) For purposes of CPF, the court was asked to regard the plaintiff as a sub-contractor. His range of earnings should, however, be $400 to $1,200, having regard to his earnings in 1988 and 1989.

Mr Pillai submitted that the multiplicand for pre-trial loss should be:

(1) $700 per month for the 12 months of 1990 less tax and expenses because mitigation was not possible.

(2) $700 per month for the period of 1991 to 10 July 1992 less a sum for failure to mitigate, after expenses and tax.

(3) The court should take into account tax liability and make an appropriate deduction for both pre-trial loss and loss of future earnings.

(4) What was an appropriate deduction for tax was left to the court.

(5) Pre-trial loss as special damages had to be proved. Estimation is only permitted for future loss of earnings.

He said the multiplicand should be $800 less appropriate deductions for tax, a sum of $300 that could have been obtained from employment had the plaintiff discharged his duty to mitigate should be taken into account.

In Payzu Ltd v Saunders ,1 the Court of Appeal, in a contract case, held that the question what steps a plaintiff in an action for breach of contract should take towards mitigating the damage is a question of fact and not of law. McCardie J said at p 585:

The question is one of juristic importance. What is the rule of law as to the duty to mitigate damages? I will first refer to the judgment of Cockburn CJ in Frost v Knight, (1) where he said: `In assessing the damages for breach of performance, a jury will of course take into account whatever the plaintiff has done, or has had the means of doing, and, as a prudent man, ought in reason to have done, whereby his loss has been, or would have been, diminished.` ...

And at p 586:

... I think that the substance of the rule which I have indicated was also laid down by the House of Lords in British Westinghouse Electric and Manufacturing Co v Underground Electric Railways Co of London(1), where Lord Haldane said: `The fundamental basis is thus compensation for pecuniary loss naturally flowing from the breach; but this first principle is qualified by a second, which imposes on a plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach, and debars him from claiming any part of the damage which is due to his neglect to take such steps.`

Mitigation

The plaintiff in this case had a duty to mitigate. He was not required to minimize his loss at all costs. He had to take all reasonable steps to do so. If the plaintiff fails to do what he could reasonably have done to minimize loss, damages must be assessed on the basis of the loss he would have suffered had he taken those reasonable steps. Reasonable expense such as fees paid for training to mitigate can be recovered as...